In a just-released Advice Memorandum found here, the NLRB General Counsel’s office (“GC”) publicized its position that employers must bargain with their unions before implementing new social media policies. The Memo “casually” notes that work rules, such as social media guidelines, provide an independent basis for discipline and are mandatory subjects of bargaining. According to the GC, even if an employer navigates around the ever-increasing landmines set by the Board and GC in developing a social media policy, employers must also seek union approval before implementing the policy, unless, of course, the underlying collective bargaining agreement contains a clear and unmistakable waiver of the union’s right to bargain over such policies.
The Memo also reemphasized prior GC social media pronouncements to find that certain provisions of Giant Food’s policy – commonly found within employee handbooks – infringed on its employees’ National Labor Relations Act (“NLRA”) rights. Below are the infringing guidelines and why, according to the GC, they violate federal labor law.
You have an obligation to protect confidential, non-public information to which you have access in the course of your work. Do not disclose…to any unauthorized Associate any confidential information about the Company…or about other Associates….
To the GC, this provision was too vague because it failed to define or clarify “non-public” or “confidential.” In the GC’s view, employees could read these vague terms to forbid discussing or sharing information on wages, other working conditions, or other employment terms that they are free to discuss under the NLRA.
Do not use any Company logo, trademark, or graphics, which are proprietary to the Company, or photographs or video of the Company’s premises, processes, operations, or products, which includes confidential information owned by the Company, unless you have received the Company’s prior written approval.
As in the past, the GC demonstrated little understanding of federal intellectual property laws by asserting that employee use of company names, trademarks, and logos on electronic leaflets, cartoons, and picket signs is permissible under the NLRA and that intellectual property laws offer employers no protection from such use.
The GC also found unlawful any prohibition on employee use of photographs or videotapes of the employer’s premises. The GC’s primary concern was protecting employee rights to share information about their terms and conditions of employment through social media or engaging in protected concerted activity at the employer’s premises.
Finally, the GC rejected as ineffective the policy provision that the Company would not interpret or apply the guidelines “in a manner that improperly interferes with or limits employee’s rights under any state or federal laws, including the National Labor Relations Act.”
The GC Advice Memo is neither law nor legal precedent. But this and other GC Advice Memos, coupled with the imminent appointment of two pro-labor NLRB appointments to join NLRB Chair Mark Pearce in order to form a more perfect (pro-) union NLRB clearly forecast more and more pro-labor NLRB decisions.